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Disqualification By Reason Of Death Or Insanity Of Adverse Party

This section is called "The Survivorship Disqualification Rule" or
"Dead Man Statute".

It constitutes only a partial disqualification as the witness is not 
completely disqualified but is only prohibited from testifying on the 
matters therein specified, unlike the marital disqualification rule 
which is complete and absolute disqualification.

NOTE: This applies to both civil and criminal cases.

Requisites For The Application Of This Rule:
1. The witness offered for examination is a party plaintiff, or the 
   assignor of said party, or a person in whose behalf a case is 
      - Such plaintiff must be the real party in interest. This 
        disqualification does not apply where a counterclaim has been 
        interposed by the defendant as the plaintiff would thereby 
        be testifying in his defense. The same is true where the 
        deceased contracted with the plaintiff through an agent and 
        said agent is alive and can testify, but the testimony of the 
        plaintiff should be limited to acts performed by the agent.
      - The term “assignor” of a party means assignor of a cause of 
        action which has arisen, and not the assignor of a right 
        assigned before any cause of action has arisen.

      - A witness may testify against an estate, provided he is not a 
        party, or an assignor of a party, or a person in whose behalf 
        the suit is instituted. Interest in the outcome of the suit,
        per se, seemingly, does not disqualify a witness from 

2. The case is against the executor or administrator or other 
   representative of a person deceased or of unsound mind.

      - The term “representative of a deceased person” has been 
        interpreted to include not only the executor or administrator 
        of a deceased person, but also the person who has succeeded 
        to the right of the deceased, whether by purchase or descent 
        or operation of law.

      - It is necessary that the said defendant is being sued and 
        defends in such representative capacity and not in his
        individual capacity. Even if the properties have been 
        judicially adjudicated to the heirs, they are still protected 
        under this rule against such prohibited testimony as they are
        considered as the representatives of the deceased.

      - The rule applies regardless of whether the deceased died 
        before or alter the suit against him is filed provided he is 
        already dead at the time the testimony is sought to be given.

3. The case is upon a claim or demand against the estate of such 
   person who is deceased or of unsound mind.

      - The rule does not apply where it is administrator who brings 
        an action to recover property allegedly belonging to the 
        estate or the action is by the heirs of a deceased plaintiff 
        who were substituted for the latter.

      - This is restricted to debts or demands enforceable by personal 
        actions upon which money judgments can be rendered.

      - An action for damages for breach of agreement to devise 
        property for services

      - Estate of a deceased person includes all properties, real and 
        personal, belonging to the deceased person.

4. The testimony to be given is on matter of fact occurring before 
   the death, of such deceased person or before such person became 
   of unsound mind.

      - This includes any matter of fact which bears upon a transaction 
        or communication between the witness and the decedent, even
        though without the presence or participation of the latter.

      - Negative testimony, that the fact did not occur during the 
        life time of the deceased, is not covered by the prohibition.

      - Testimony on the present possession by the witness of a 
        written instrument signed by the deceased is also not covered 
        by the prohibition, as such fact exists even after the 
        decedent’s demise.

      - The parties plaintiff to an action is not rendered incompetent 
        to testify to fraudulent transactions of the deceased, as 
        the rule is not designed to shield wrongdoers. But before 
        admitting the testimony of parties plaintiff in this kind of 
        action, the court should compel such parties to clearly 
        establish the alleged fraudulent acts.

In land registration case instituted by the decedent’s representatives, 
this prohibition does not apply as the oppositors are considered 
defendants and may therefore, testify against the petitioner. This
prohibition does not also apply in cadastral cases since there is no 
plaintiff or defendants therein.

Since the purpose of this rule is to discourage perjury and protect 
the estate from fictitious claims, the prohibition does not apply 
even if all the 4 requisites above are present, where the testimony 
is offered to prove a claim less than what is established under a
written document or is intended to prove a fraudulent transaction of 
the deceased, provided such fraud is first established by evidence 

This is designed to close the lips of the party as plaintiff when 
the death has closed the lips of the party defendant. If the purpose 
of the oral testimony is to prove a lesser claim than what might be
warranted by clear evidence, to avoid prejudice to the estate of the 
deceased, the law has certainly no reason for its application.

When Deemed Waived
The disqualification under this rule is waived if the defendant 
does not timely object to the admission of such evidence or testifies 
on the prohibited matters or cross-examines thereon.

If the case is brought against the partnership of the deceased, the 
witness is still credible because the testimony is not against the 
deceased nor his estate.

Bar Exam Question 2001
Maximo filed an action against Pedro, the administrator of the estate 
of deceased Juan, for the recovery of a car which is part of the 
latter’s estate. During the trial, Maximo presented witness Mariano 
who testified that he was present when Maximo and Juan agreed that 
the latter would pay a rental of P20,000.00 for the use of Maximo’s 
car for one month after which Juan should immediately return the car 
to Maximo. Pedro objected to the admission of Mariano’s testimony. 
If you were the judge, would you sustain Pedro’s objection? Why? (5%)

      Suggested Answer
      No, the testimony is admissible in evidence because witness 
      Mariano who testified as to what Maximo and Juan, the deceased 
      person agreed upon, is not disqualified to testify on the 
      agreement. Those disqualified are parties or assignors of 
      parties to a case, or persons in whose behalf a case is 
      prosecuted, against the administrator or Juan’s estate, upon a
      claim or demand against his estate as to any matter of fact 
      occurring before Juan’s death. (Sec.23 of Rule 130)